Tourism Integration Ltd t/as Jettzy v Hui

The Decision

1. To understand the issues on appeal it is appropriate to summarise the Decision.
2. At [1] to [12] the Tribunal summarises the application and sets out procedural matters.
3. As to the application, the Tribunal noted that the respondent (as applicant) had purchased airline tickets from the respondent on 15 July 2022. For the reasons summarised later in the Decision, the respondent sought a full refund for the costs of the tickets ($3,063.00) and a refund for the cost of COVID-19 PCR costs ($199.00).
4. As to procedural matters, the Tribunal noted that it had received no documents from the respondent. The appellant (which was based in New Zealand) told the Tribunal that documents had been sent to the Tribunal and quoted a tracking number. Be that as it may, the Tribunal did not have any documents from the appellant before it, but allowed its Business Manager Mr Phong Nguyen and another representative Ms Linda Man to give oral evidence. In addition, the Tribunal looked at the appellant's website during the hearing.
5. We pause to note that no sound recording or transcript of the Tribunal hearing was filed by either party. Accordingly, we do not know what oral evidence any party or representative gave to the Tribunal, save for what is recorded in the Decision.
6. However, it was common ground at the appeal hearing (and clear from [22] of the Decision), that the Tribunal was taken to the following statement on the appellant's website which stated: Travel Alert Some governments have implemented measures, including health and safety protocols, in response to COVID-19 that may impact your travel. Before booking and before departure, ensure you check the latest government travel requirements, which may include mandatory health declarations, vaccinations, use of face masks, entry permits, pre-approval and quarantine (possibly at your own expense), or you could be denied entry.
7. At [13] to [23], the Tribunal then sets out "Background and Evidence": 13. The respondent is an online travel agent. 14. The applicant gave evidence that on or 15 July 2022 she went to the respondent's website in order to book a one-way airline ticket from Sydney to Guangzhou, China. 15. The website did not provide any direct flight in the list of available flights. Rather all options included brief transits through a third destination. 16. The applicant booked a flight from Sydney to Guangzhou with a 5 hour 20 min stopover in Auckland for Sunday 31 July 2022. The first leg of the trip was on LATAM airways, the second leg was on China Southern Airways. The flight was to depart Sydney at 11.35 am on Sunday 31 July 2022. The applicant has provided a copy of the Electronic Itinerary and Booking Confirmation provided by the respondent (Annexure A). 17. Prior to the flight the applicant undertook two COVID-19 PC tests. The first test was performed on 29 July 2022 at 6.54 pm. The second test was performed on 30 July 2022 at 11.38 pm. The tests were negative. As a result the applicant was issued with a Health Code document from the Consulate General of P.R. China in Sydney for travel to Auckland. 18. When the applicant arrived at the airport on Sunday 31 July 2022 she was advised by LATAM airways that she was not permitted to take that flight. The applicant did not understand why as she had all her documents in order. She says LATAM told her to contact her travel agent (the respondent). 19. As the applicant was prevented from leaving Sydney she was also unable to present for her flight from Auckland to China. 20. The applicant only learnt after doing her own research that the reason for this was that China required a 48 hour stopover in any transit location with further COVID-19 testing conducted in the transit city. 21. It appears that COVID-19 testing was not available at Auckland on a Sunday. 22. The respondent says they do not give advice to clients and that their website makes it clear that passengers must ensure that they have complied with all necessary government requirements, including those relating to the pandemic. 23. The respondent also contended that the applicant could have used the multicity option to arrange a longer stay over in a transit destination.
8. At [24] to [28] the Tribunal sets out the relevant law, being various provisions of the Fair Trading Act 1987 (NSW) and the Australian Consumer Law (ACL).
9. The Tribunal concludes as follows: 29. I have considered all evidence and testimony given in this matter. In my view the respondent has promoted and then sold a ticket combination which was not viable. There is nothing which the applicant could have done to make the option purchased usable. 30. This is not a matter in which the applicant has failed to take some step which she should have anticipated was necessary. For example, she did not delay in obtaining COVID-19 tests in the correct timeframe. Rather, it appears that she was diligent in ensuring she had met the testing requirements which then allowed her to be granted a Health Code from the Chinese government. 31. The respondent is a travel agent. It is reasonable to expect that offers made by the agent to satisfy a customer's desire to travel from one destination to another are workable options. That is, it is reasonable to expect some level of thought and planning on the part of the respondent when they offer a flight package. 32. COVID-19 restrictions were certainly not new at the time when these flight arrangements were made. Whilst the customer would be expected to have the necessary testing done and to ensure sufficient time was allowed for these processes prior to the flight I am of the view that it was incumbent upon the respondent to ensure that the flight combination offered was indeed a genuine route which would allow the customer to travel to their final destination. 33. In this case the flight offered and sold by the respondent to the applicant was not a workable option and the customer was stopped prior to boarding at Sydney airport. I find the respondent did not exercise due care and skill and provided tickets which were not fit for the purpose for which they were purchased. Simply put there was nothing which the customer could have done to make the ticket combination offered a viable option for travel from Sydney to Guangzhou.
10. The Tribunal then makes an order for the payment of the $3,262.00 claimed by the respondent.

Notice of Appeal

1. The company appealed the decision by filing a Notice of Appeal on 22 March 2023. The grounds stated in the Notice of Appeal is as follows: "We think it is unfair to order us to compensate $3262 for Ms. Hui because: 1. Ms. Hui's ticket is non-refundable. We cannot submit refund for this ticket to the airlines. 2. Ms. Hui should have checked all the travel requirements and should have only bought the flights if it could work for her. In fact, as an online travel agency, we only sell the tickets on our website www.jettzy.com.au and we do not book the tickets for customers manually. In 2022, many travel restrictions were still in place. Therefore, we uploaded many travel alerts on our website to inform our customers to check the latest government travel requirements carefully before buying the tickets. 3. We offered many different flight options between Sydney and Guangzhou, including direct flights, transit flights and stopover flights. Ms Hui used the one-way search function and it only displayed direct flights and transit flights (transit means stop in the 3rd country less than 24 hours). But if Ms Hui used the "Multi-city" search function, the wevsite [sic - website] would have displayed stopover flights (stopover means stop in the 3rd country more than 24 hours). 4. Had Ms Hui been aware that she needed to take a COVID test in Auckland at the time of booking her ticket, she would not have purchased a ticket that only allowed her to transit in Auckland for 5 hours. 5. Although the ticket is non-refundable as confirmed by the airlines, the ticket has been held in credits. Ms. Hui can still use these flight credits to rebook the new flights. Rebooking new flights are subject to airlines' change fee, any potential fare difference (if the new flight is more expensive than the original credits) and reissue fee.

Attachments to the Notice of Appeal

1. Attached to the Notice of Appeal were two bundles of documents.

First bundle of documents

1. The first bundle is titled "Case Summary".
2. Page 1 of the document is simply a chronology of factual events which are not in dispute.
3. On p 2, the appellant submits: JETTZY do not assist its customers to book the tickets manually. All customers must book their tickets directly on our website www.jettzy.com.au. JETTZY understand that travel would be affected by border closures and new travel requirements. Therefore, JETTZY always put up the Travel Alert message on our web pages to advise our customers. [The respondent] had 3 chances to review her booking before paying for the ticket.
4. The following pages then reproduce screen shots of the appellant's ticketing process in relation to the respondent. They pages shows that after the tickets were first requested, the respondent was then taken to a further screen which contains a second travel alert in these terms: Please ensure you meet all government transit and entry requirements before travel (including COVID test and quarantine reservation).
5. At a further and final screen, after the tickets were paid for, an "Important Note" states: You have confirmed that you hold all the necessary documentations, it valid passport, visa, and meet all the relative requirements of all the countries on your journey. We do not provide any information or advice on visa requirements to any customers. (grammatical errors as in original)
6. The appellant then submits: Why did [the respondent] purchase this ticket with insufficient layover in Auckland? [The respondent] was not aware of the requirement to do the COVID test in Auckland until she was rejected for boarding from Sydney. This is why she bought the ticket with insufficient transit time in Auckland. If she was aware of this stopover requirement at the time of booking the ticket, she would not have paid for the ticket that did not allow her to travel. [The respondent] was not aware of how to book the stopover in Auckland. This option is always available on our website by choosing "Multi-City". She only searched and bought the one-way ticket with 5 hours transit in Auckland. [The respondent] must be responsible for her own decision of which flights that she bought and travelled on.

Second bundle of documents

1. The second bundle of documents includes correspondence between the parties after the respondent was denied the right to board her LATAM flight from Sydney to New Zealand.
2. These documents were not before the Tribunal and, in any event, are not relevant to the determination of the appeal. The documents indicate that, at least until the respondent enforced a money order against the appellant for $3,262.00, the appellant was giving the respondent a flight credit as long as she rebooked her tickets before 15 July 2023 and travelled before 30 June 2024.

Submissions of 9 May 2023

1. On 9 May 2023, the appellant provided to the Tribunal a document which: 1. sets out [17], [18], [20] and [27] of the Decision; 2. reproduced an extract from the Australian Government publication "Consumer guarantees: A guide for businesses and legal practitioners", which states: [1] When the consumer does not rely on the supplier in choosing the services When the consumer does not rely on the supplier in choosing the services The 'fit for a particular purpose' guarantee will not protect the consumer if they did not rely, or it was unreasonable for them to rely, on the supplier's skill or judgment in agreeing to particular services. For example, it may not be reasonable for a consumer to rely on a receptionist in a large service company for advice about which service is suitable. 1. made the following submissions: 1. JETTZY Company does not provide one-on-one consultation services to customers to advise them on which flights to purchase or which specific travel documents they should prepare. The responsibility for researching all available flight options and required travel documents at the time of booking rests solely with the customers. Customers should only pay for the flight that meets all requirements. 2. JETTZY's booking portal does not provide specific travel requirement advice due to the frequent and rapid changes in travel requirements, particularly during the on-going pandemic. As a result, JETTZY has informed its customers on the booking portal to carefully check all required travel documents before making a payment for their tickets. 3. The respondent was able to find out all COVID tests required to enter China and transit visa via Auckland. What prevented the respondent from finding out the COVID test required while transiting in Auckland, New Zealand? 4. In the event that the respondent was able to ascertain the mandatory COVID test requirement for transit in Auckland, New Zealand, they should not have procured the flight option in question. JETTZY also provided a flight combination that allowed customers to extend their stay in Auckland for as long as required. The respondent had previously communicated with JETTZY, questioning the unavailability of this stopover option on the booking portal. JETTY responded by providing the necessary steps to book this particular flight option.

Oral submissions at the appeal hearing

1. Both the appellant's director Mr Peter Li and its Business Manager Mr Phong Nguyen addressed the Appeal Panel, although Mr Li had the principal carriage of the appeal. In summary, Mr Li submitted that the three errors of the Tribunal were: 1. the appellant did not provide transportation services, rather, the two airlines did. The services provided by the appellant were facilitating access by the respondent to airline tickets and prices by aggregating onto its website information about possible travel itineraries which connected the respondent through an application programming interface (or API) to the airlines in question; 2. the appellant does not provide any assurance that an itinerary booked by a consumer is fit for purpose, as, at the time, the COVID "rules" were changing constantly. That is why the Travel Alert appears on its website at various steps as the consumer books their trip; 3. the respondent was not relying on the appellant's advice or services when she booked her trip.
2. While not articulated at the appeal hearing, this appears to be a reference to s 61(3) of the ACL. Section 61 relevantly provides: 61 Guarantees as to fitness for a particular purpose etc. (1) If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer; there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose. (2) If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made; the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result. (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier. …

Reply to Appeal

1. The respondent filed a Reply to Appeal on 4 April 2023. Relevantly she states: A. ORDERS CHALLENGED ON APPEAL Do you support the original orders made by the Tribunal which the Appellant challenges for reasons other than those given by the Tribunal? Yes … 1. Under the Australian Consumer Law, supplier must provide a consumer guarantee in relation to services, and that the services will be rendered with due care and skill (s60). Integration Limited (Jettzy) advertised and sold me a ticket that was not viable to use. 2. Services must be reasonably fit for a purpose that consumer expressly or by implication makes known to the supplier. Furthermore, services must be of a nature, quality state and conditions, such that they can be expected to achieve a result that the consumer makes known to the supplier. It is generally expected that as a travel agent, Jettzy would sell viable ticket combination to allow consumer to travel from one destination to another. Due to the COVID travel requirement at the time, travellers going to China must have a 48 hour stopover at a transit country. The ticket itinerary, which Jettzy sold me provided me a 5 hour layover, which does not comply with China's entry requirement. 3. Jettzy.com.au relies on an automated system, an automotive travel agent system which enables invoice generation, and processing virtually without any human intervention. Once consumers confirm their bookings on Jettzy, the software will automatically create and send them an invoice. In my case, when I purchased the ticket combination, the invoice and confirmation receipt was sent to me immediately, thus, I was under the impression that it was a viable travel itinerary. If s travel agency relies almost entirely on an automated system without human intervention, during, or after the transactions, and failed to inform me that the ticket I purchased is logical impossible, it shows that Jettzy did not exercise due care and skill. 4. Furthermore, Jettzy showed a lack of responsibility in ensuring that the consumers are able to use their tickets. When I was rejected at the Sydney Airport, I tried to get in contact with a Jettzy staff member as soon as possible, that proved to be difficult as they are not contactable via phone, and they only responded to my email four hours after my departure time. If the entire corporation relies on automated system, at least Jettzy could do to make consumer customer service available B. REPLY TO APPELLANT'S GROUNDS OF APPEAL Tourism Integration Limited (Jettzy) argues that their website always put up a travel alert message to advise their customers. Message tells customers to prepare all necessary documents etc. In my case, I prepared all necessary documents. I have provided 2 negative PCR Covid test, vaccination, passport, New Zealand transit Visa and entry approval by the Chinese embassy. I was not rejected at the airport not on the basis of my documents, but the flight combination supplied by Jettzy. Jettzy argues that I should have clicked 'multi-city option on the man page of the website to get a longer stop-over time. When I first purchased the ticket, I intended to purchase a direct flight from Sydney to Guangzhou, hence I clicked on one of these flight combination that was predetermined for me - 5 hour layover in Auckland. There were no instructions or explanations on the main page of the website to ask consumers to click on multi-City. Booking agencies have a responsibility under consumer law to provide crucial information in relation to services they provide. If Jettzy wish to adopt an automated system - where purchasing a ticket can be done at the click of a button, then Jettzy has a responsibility to make sure that their tickets are feasible. Jettzy argues that they cannot provide a refund as China Southern Airlines refuse to do that. I did not purchase a ticket through the China Southern Airlines website. I purchased a ticket through Jettzy.com.au. Thus It is Jettzy's responsibility to pay me back the refund and damages, not the airline's responsibility. Last time Jetty tried to negotiate with me, they offered me the full flight credit back, except I have to pay at least $1000 fee to use the flight credit. On the 29th of March, Jettzy stated that they have negotiated with China Southern Airline, and they have agreed to waive the 'no-show' fee. I would not accept that and would prefer a direct refund plus damages, there are two reasons. Firstly, Jetty states that if I were to book a ticket must contact their staff member to do so, they will not issue me a flight credit code for me to freely book a flight. Secondly, upon further research on Jettzy's reviews online, many customers have issues with using their flight credits. When consumers contact Jettzy to use the flight credit, Jettzy staff members often ignore their requests. And when Jetty does respond, consumers must often face exorbitant fee in order to use the flight credit. For these reasons, l am distrustful of Jettzy's offer and would prefer to have a direct refund plus damages.

Statement of 29 March 2023

1. Attached to the Reply to Appeal is a statement of the respondent dated 29 March 2023. This statement repeats the respondent's version of events and some of her submissions set out in her Reply to Appeal.

Response to Tourism Integration Limited

1. Attached to the Reply to Appeal is also a document titled "Response to Tourism Integration Limited". This document repeats the respondent's submissions set out in her Reply to Appeal.

Other documents

1. Attached to the Reply to Appeal is a further bundle of other documents including the respondent's evidence that was before the Tribunal (such as her Jettzy itinerary, PCR results and so on), and documents which were not before the Tribunal (including correspondence with the appellant which post-dates the Tribunal hearing).

Documents filed on 4 May 2023

1. The respondent filed further documents on 4 May 2023. Relevantly, these included further submissions in response to the Notice of Appeal. In summary, the respondent submits: 1. under the ACL, a term of a consumer contract is unfair if it would cause a significant imbalance in the parties' rights and obligations arising under the contract. The respondent submits that it is unfair for the appellant to waive its obligation as a service provider by providing a service that is unfit for the purpose of the customer; 2. under s 29 of ACL, it is unlawful for a business to make false or misleading representations about goods or services when supplying, offering to supply, or promoting those goods or services. Here the respondent submits that: 1. the ticket was advertised and sold to her; hence she was under the assumption that the ticket would allow her to travel from one destination to the other; 2. a warning statement of COVID restrictions on the website page does not constitute a legally binding agreement when the service sells me an unfit product and does not waive all obligations from the service provider; 1. under s 137 of ACL, a business supplying services must comply with "the information standard". The respondent submits that: 1. silence can be misleading: "[t]his is particularly the case when [the appellant] doesn't mention important details that I should know which would influence my decision on purchasing their service"; 2. a simple warning statement that "some governments have implemented measures, including health and safety protocols, in response to COVID-19 that may impact your travel" does not provide any substantial or useful information that could influence customers' decisions on purchasing their service; 1. sections 60 and 61 of the ACL provide guarantees as to due care and skill and as to fitness for a particular purpose. As the appellant is an online travel agency, it has the legal responsibility to use an acceptable level of skill or technical knowledge when providing its services; 2. in what appears to be a response to the appellant's s 61(3) argument, the respondent submits: In response to Jetty's statement, the legal argument that Jetty provided is different and does not apply to this case. Everything Jettzy disclosed on their website or the information they show to their customer, is what they have. There are no other realistic avenues a customer can rely upon in making a purchase or choosing a particular service from a service provider. The basic responsibility of a travel agency is to ensure tickets they advertise are feasible. It is not "unreasonable" to assume that a travel agency possesses the necessary skills and information regarding the feasibility of flights. If Jettzy is refusing such responsibilities, then it shows that the company lacks the basic ethical conduct of a business. 1. finally, the appellant as a service provider failed to meet a consumer guarantee. Under the ACL, when there are major failures, the consumer can get a refund for any unconsumed services. Furthermore, the appellant also failed to identify any questions of law in its submissions.

Oral submissions of the respondent

1. The respondent's oral submissions at the appeal hearing were concise. In summary, she submitted that: 1. as a consumer she is entitled to a level of care and skill in the provision of the appellant's services to her, and it is not unreasonable of her to expect that; 2. she was sold a ticket that did not allow her to fly; 3. while she checked the ticket she did not know that she was required to transit in New Zealand for 48 hours; 4. a simple warning by the appellant is not useful information; 5. it is "extremely unfair" for the appellant as agent to say it not responsible for getting their consumers to their destination; this shows a lack of ethical conduct.

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. The non-exhaustive list included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have undertaken that exercise. The preliminary view we expressed during the appeal was that we could not identify any question of law. However, during the appeal hearing, Mr Li did raise a question of law, although not expressed as such. Mr Li submitted that the appellant had not provided transportation services, rather, the two airlines did. Mr Li submitted that the services provided by the appellant was facilitating access by the respondent to an airline by aggregating onto its website information about possible travel itineraries which connected the respondent through an application programming interface (or API) to the airlines in question.
4. Accordingly, on balance, we consider that a question of law was raised. Whether in fact the Tribunal made an error in respect of that question of law is a separate question, which we address below.
5. We have now had the opportunity to examine the documents, and we see that there is an issue which raises concerns. We will address that issue below.
6. For errors which are not errors in respect of a question of law, the appellant requires a grant of leave to pursue its appeal.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65] - [79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Consideration

1. We referred above to an issue which we identified in the parties' papers. That issue that is the legal nature of the relationship between the parties.

A question of law

1. In our view the appellant has raised a question of law, and that is the status of the relationship between the parties. That in turn is requires consideration of the terms of the contract between the parties. As the Appeal Panel noted in Carolan v Haghparast [2023] NSWCATAP 121 at [82], the interpretation of contractual terms is primarily a matter of law.
2. The Appeal Panel stated in Kiss v Parsons [2021] NSWCATAP 217 that where a travel agent accepts payment as agent only and the booking terms and conditions make that plain when travel arrangements are made between the client and the agent, the client has no recourse to the travel agent.
3. The Appeal Panel in Kiss referred to Flight Centre Travel Group Ltd T/A Aunt Betty v Goel [2021] NSWCATAP 44. In that decision, the Appeal Panel stated: Consequences of agency 45 By virtue of the incorporation of the terms and conditions into the contract, the respondent thereby acknowledged that the appellant was acting as agent for the carrier, Malaysia Airlines, in making the airline reservations. 46 An agent usually means a person employed for the purpose of placing the principal in contractual or other relations with a third party. The agent is one who by authority, performs an act for another. Where a person enters into contractual relations as agent, the agent signifies that it does not sign as principal and did not intend to incur personal liability: see Universal Steam Navigation Co v McKelvie & Co [1923] AC 492 per Lord Parmoor at 503-504. 47 Such principle was referred to specifically in relation to travel agents in Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429, where Allsop P and Handley AJA said at [21], in answer to a submission that a party who arranged flight travel was liable for injuries sustained on a flight operated by the appellant: We reject these submissions. The phrase "as a principal" describes the capacity of the person who "makes an agreement for carriage". An agent who "makes" such an agreement, such as a travel agent, is not a contracting carrier. 48 Further, at [22], their Honours said: Travel and transport intermediaries may procure a contract of carriage as a broker or agent; or may undertake a contractual obligation for carriage. In the former case they are not a principal, but in the latter they are, even if they cannot perform the contract themselves but have to subcontract with an actual carrier. 49 It follows that, provided that the respondent had knowledge of the terms and conditions which included a term that the appellant was acting only as agent, or is deemed to have such knowledge, no personal liability is incurred by the agent. Does the Australian Consumer Law operate? 50 The respondent maintains that the payment made was in respect of the travel to India. Such submission proceeds on the basis that the appellant was to provide the air carriage services. However, it is important to determine precisely the nature of the services which were to be provided by the appellant to the respondent.
4. In Kiss the Appeal Panel stated that the booking terms and conditions made it plain that the appellant was to provide booking and advisory services only which would allow the respondents to acquire travel products from third party travel providers, and that the appellant was acting as an agent for the third party travel providers. The terms and conditions drew attention to the fact that rules and restrictions applied, and that the appellant (as agent) was not liable for any loss or damage suffered in connection with, inter alia, the non-delivery of a travel product. Specifically, the terms stated that the appellant was not liable for breach of obligations by any third party travel provider: see [29].
5. The Appeal Panel continued: 31. A travel agent, which affects a sale, for example, of airline tickets, ordinarily does so only as agent: see Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd (2016) 261 CLR 203; [2016] HCA 49. 32 In view of the concession made by Ms Parsons that she was aware that the appellant would not be providing the airline services personally nor the accommodation and excursions, and the fact that the Booking Terms and Conditions which, in substance, conveyed that information, were supplied to the respondents, the respondents must have been aware that the appellant was only acting as agent in making the travel reservations. The Appeal Panel therefore concurs with the finding of the Tribunal that the appellant was the agent for the respondents. … 35 An agent is usually one who was employed for the purpose of placing the principal in contractual or other relations with a third party. Where a person enters into a contractual relation as agent, the agent signifies that it does not sign as principal and did not intend to incur personal liability: see Universal Steam Navigation Co Ltd v McKelvie & Co [1923) AC 492 per Lord Parmoor at 503-504. With respect to travel agents, this principle has been adopted: see Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429 at [21]. At [22] their Honours (Allsop P and Handley AJA) said: "Travel and transport intermediaries may procure a contract of carriage as a broker or agent; or may undertake a contractual obligation for carriage. In the former case they are not a principal, but in the latter case they are, even if they cannot perform the contract themselves but have to subcontract with an actual carrier. …" 36 As a result of the facts, and these principles, any monies received by the appellant were received as agent and were received only in this capacity. The relevant contracts were between the respondents and the travel providers, with the appellant acting as the travel providers' agent in entering into these contracts (on their behalf) with the respondents. The concept of agency was not confined only to the payment made for air travel. The costs for hotel accommodation and the Rocky Mountaineer railway and other excursions were all paid by the respondents to the appellant on the same basis, namely as agent. Accordingly, where cancellation occurred as in this instance, the agent (appellant) is not liable to meet any loss. The agent has only acted to facilitate the making of the reservations. (emphasis added)
6. We found a similar analysis of the Appeal Panel in Great Wall Travel Services Pty Ltd v Lai [2021] NSWCATAP 64 to be helpful: 26 The starting point in analysing that relationship [between the parties] is the Terms and Conditions, of which two provisions are central to this appeal: (1) The first is the first paragraph, which provides relevantly that the appellant "…is not itself a transport, tour, event or accommodation provider. It acts only as agent for those service providers. You should obtain and read the applicable service provider's terms and conditions as they may limit or exclude liability in respect of death, personal injury, delay and loss or damage to baggage. Payment of the booking deposit or tour price represents your acceptance of these terms and conditions". (2) The second is the condition headed "Tour Operation", which provides as follows: "Although [the appellant] will endeavour to ensure that tours are available as advertised, an express condition of making a reservation is acceptance by the client that tour itineraries and schedules, advertised accommodation, sightseeing programs and modes of transportation as outlined in this brochure and our itinerary paper and/or supplied in pre-departure information are subject to change without prior notice. Air travel, coach journeys and other forms of transport and hotel accommodation are provided by independent operators and all bookings through [the appellant] are subject to the terms, conditions and limitations of carriers, hoteliers and other service providers. The itineraries are subject to change upon local arrangement or service provider schedule change". 27 The conclusion which follows from these provisions is that the appellant assembled and presented to the respondents for their approval a variety of services from numerous independent providers, including air and ground transport, sightseeing and accommodation, which taken as a whole constituted the respondents' South American holiday. However, the only elements of the entire holiday package provided by the appellant itself were the organisational, coordinating and advisory services involved in identifying, organising and proposing appropriate suppliers of services to the respondents and liaising between the respondents and the third-party suppliers. The principal elements of the tour - flights, accommodation and sightseeing - were all provided by third parties, pursuant to contracts entered into with the respondents by those third-party suppliers through the agency of the appellant. 28 In relation to air travel, the appellant appears to have been acting as agent for a disclosed principal, namely LATAM Airlines, whose engagement as air transport provider is clear on the face of the Tour Booking Form provided by the appellant to the respondents by email on 15 January 2020, and to which the Terms and Conditions were appended. In relation to other aspects of the tour, the appellant appears to have been acting as the agent of undisclosed principals. … 29 … To suggest therefore that the services provided by the appellant extended beyond the organisation of the tour, to include the conduct of the tour or the provision of associated benefits and facilities to the respondents, incorrectly overstates the role of the appellant. 30 A differently constituted Appeal Panel of the Tribunal adopted in Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44 a similar characterisation of the relationship between a travel agent and its customer. … 31 Moreover, the approach which we propose to take in this case (and which was taken in Flight Centre Travel Group Limited T/A Aunt Betty v Goel is consistent with that adopted by the Court of Appeal in Air Tahiti Nui Pty Limited v McKenzie [2009] NSWCA 429.
7. We can see from the materials provided by the appellant, that is the material on its website that the Tribunal was taken to, that immediately prior to payment of her tickets the respondent would have acknowledged that she had read agreed to the appellant's "Terms and Conditions".
8. The issue for the Appeal Panel is that we do not not know what those terms and conditions were. Consistent with the authorities referred to above the appellant may have been acting as agent for two disclosed principals, namely LATAM Airlines and China Southern Airlines. If so, we have difficulties with the Tribunal's findings that the respondent bought tickets from the appellant (Decision at [1]); rather the respondent bought the tickets from the respective airlines through the appellant as their agent.
9. In this respect, we note that the appellant's website states: JETTZY WILL FIND, COMPARE AND BOOK THE CHEAPEST AIRFARES FROM ALL AIRLINES.
10. While not determinative of the matter, this suggests that the appellant was an agent for the airlines, and not the contracting party providing the travel services, as the appellant claims. However, without knowing the terms and conditions of the contract between the parties, we cannot draw any firm conclusions.
11. Nor are we satisfied, in the absence of a sound recording or transcript of the Tribunal hearing, that this matter was squarely raised before the Tribunal, although Mr Li said it was.
12. That being the case the issue cannot be raised now: Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 at [21], citing Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33.
13. In conclusion, while we consider that a question of law has been raised, we are not satisfied that the Tribunal made any error.

Other errors

1. For any other error, leave is required. Three matters require consideration.
2. First, the appellant referred to the Tribunal's failure to refer to the Travel Alerts in the Decision.
3. It is correct that there is no explicit reference in the Decision to the Travel Alerts warnings which were made to the respondent during the booking process on the appellant's website. However, the Tribunal did state at [29] that it had considered "all evidence and testimony given in this matter".
4. We note that it is not necessary to make findings on every argument or every submission: Liang v University of Technology, Sydney [2018] NSWCATAP 285.
5. In any event, as was noted in Upton v Martin and Stein Antiques Pty Ltd [2017] NSWCATAP 175 at [18], on an appeal from bodies like the Tribunal, the role of the Appeal Panel is to examine the decision appealed from in a sensible and balanced way and not to go over the reasons for decision with a fine tooth comb and an eye keenly attuned to a perception of error: Politis v Federal Commissioner of Taxation [1988] FCA 446 at [14].
6. We would not grant leave in respect of this matter.
7. Secondly, the appellant submitted that the respondent was not relying on its advice or services when she booked her trip. The appellant submitted that the consumer guarantee in s 61 was not applicable as the respondent did not rely on its advice, or that it was unreasonable for the consumer to rely on its skill or judgment (ACL, s 61(3)).
8. Were we satisfied that this matter was raised at the Tribunal hearing, there may have been some substance in the submission. But in the absence of a sound recording or transcript, we are not so satisfied, and would not grant leave to appeal in respect of this matter.
9. Thirdly, the Tribunal's conclusion that "the [appellant] has promoted and then sold a ticket combination that was not viable" (Decision at [29]), may be thought to be "against the weight of the evidence": NCAT Act, cl 12(1) of Sch 4.
10. Promote means to "to encourage people to like, buy, use, do, or support something" [2] or to "to support or encourage something". [3] As noted, what the appellant did, it submits, was to aggregate otherwise publicly available information on its website for people like the respondent to access.
11. This suggests that this finding may have been against the weight of the evidence. However, as previously stated, in the absence of the sound recording or a transcript, we are not persuaded it was discussed before the Tribunal. In any event, this was not a matter raised by the appellant during the appeal hearing.
12. In relation to each of these matters, we are not satisfied that any matter involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
13. In these circumstances, we would not grant leave to appeal.

Conclusion

1. For the above reasons, to the extent that the appeal raises a question of law, the appeal is dismissed. To the extent that the appeal raises other errors, we would not grant leave to appeal.

Orders

1. The Appeal Panel orders: 1. In so far as the appeal raises questions of law, the appeal is dismissed. 2. In so far as the appeal raises other errors, leave to appeal is refused, and the appeal is otherwise dismissed.

Endnotes

1. https://consumer.gov.au/sites/consumer/files/2016/05/0553FT_ACL-guides_Guarantees_web.pdf
2. https://dictionary.cambridge.org/dictionary/english/promote
3. https://www.macmillandictionary.com/dictionary/british/encourage I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2023